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What FCC chair Ajit Pai gets wrong about net neutrality

Repealing net neutrality would undo centuries of communication policy

By promising to undo net neutrality, the Federal Communications Commission is preparing a reversal of “common carriage” communications policy that dates to the founding of the country. (Andrew Harnik/Associated Press)

By Danny Kimball

Danny Kimball is assistant professor of communication and media studies at Goucher College.

November 27, 2017

Last week, in a stark yet widely anticipated policy reversal, the Federal Communications Commission’s Trump-appointed chairman (and former Verizon attorney) Ajit Pai announced his plan to undo net neutrality rules. Established by the Obama administration’s FCC in 2015, these rules prohibit broadband Internet service providers (ISPs) such as Comcast, Verizon and AT&T from blocking, throttling or prioritizing Internet traffic. These rules treat high-speed Internet access as a public utility, requiring openness and mandating that providers cannot discriminate among online content and services. Pai and his two Republican colleagues, however, would undo all of that, going so far as to relinquish nearly all of the commission’s oversight authority of broadband companies.

But Pai’s case for repealing the net neutrality rules and the broader framework underlying them misconstrues — or ignores — the history behind net neutrality, as both principle and policy.

First, the chairman has mischaracterized the rules as an unprecedented and unnecessary power grab by the Obama-era FCC, saying that the Internet got along just fine without any net neutrality protections before 2015. Second, he argues that the current regulatory framework classifying Internet access as a public utility is antiquated, a policy “designed in the 1930s for the Ma Bell monopoly” and irrelevant to today’s technologies. Finally, Pai claims this change will return to what Congress intended — the Bill Clinton-era FCC policy of only lightly regulating Internet access, instead of the public utility obligations of ISPs today. He contends that this “free market” approach enabled the boom in Internet investment and innovation that followed.

In all three accounts, however, Pai is mistaken. In reality, the only “innovation” his plan would foster is new ways for telecommunications giants to make even more money — at the expense of consumers and democracy.

The historical context missing from Pai’s account is crucial to understanding the issue of net neutrality and its stakes. Ending net neutrality — leaving broadband providers to chase profits without public obligations — would be a disastrous reversal of communications policy that dates to the founding of the country and ensures the equal access to information that democracy needs to function. Especially in this era of steep inequality, corporate control and rising authoritarianism, the open Internet is a foundational necessity to hold the powerful to account.

When Columbia law professor Tim Wu coined the term “network neutrality” in 2003, he was not so much introducing a new concept as he was updating for the Internet age the long-standing principle that access to basic communications infrastructure should be open and nondiscriminatory — a historical tradition that goes back centuries and a policy decision that has shaped the Internet since its inception.

Net neutrality is based on the tradition of “common carriage,” the state-enforced duty of basic communications utilities to serve all on an equal basis. The roots of modern common-carriage regulation lie in 16th-century English common law, where general transportation and communications services — even if provided by private actors such as ship owners and messengers — were considered to come with “public callings,” such as treating all users on equal terms.

Democracy depends on the public having equal access to information and the ability to communicate with one another, so the resources to do so must either be publicly owned and operated or else regulated to ensure obligations to the public are met. As a result, nondiscrimination protections have been the core of U.S. communications policy since the beginning.

The federal government established the U.S. Postal Service as a publicly owned common carrier and has operated it on an open and nondiscriminatory basis since. Common-carriage policy regulated telegraph operators beginning in the 1880s and was extended to telephone services by the Mann-Elkins Act of 1910. Congress established a comprehensive policy of common carriage in the Communications Act of 1934, creating the FCC and tasking it, under Title II, with enforcing universality and nondiscrimination on neutral networks for the public to access information and communication on an equal basis.

This legislation is what Pai is referring to when he complains about the FCC relying on dusty old phone regulations to enforce net neutrality. But the Title II regulatory framework is not strictly about phones, anymore than prior common-carriage protections were about ships or telegraphs — it’s about basic principles of openness and nondiscrimination, no matter the technology used to communicate.

These same principles have guided Internet access since its beginning. The FCC has applied openness policies to computer networks since the 1980s, when it separated the “information services” that make content available on a network from the “telecommunications services” that operate the basic infrastructure of the network. The Telecommunications Act of 1996 codified this distinction for the FCC: Title I spelled out a hands-off approach to information services’ content, while Title II mandated strong common-carriage protections for telecommunications services’ infrastructure.

The Clinton-era FCC initiated its policy for Internet access along these lines in 1998. It classified ISPs as information services, the decision celebrated by Pai to treat them with a “light touch.” But Pai omits a crucial fact — the FCC mandated open access to the underlying telephone networks that ISPs used to provide dial-up Internet service. So, yes, ISPs such as AOL were classified as information services. But the era’s dial-up Internet depended on telephone lines, which the FCC aggressively regulated through nondiscrimination requirements that protected net neutrality.

By the 2000s, however, Internet access shifted from dial-up to broadband and cable companies consolidated control. They collapsed the separation between ISPs and network operators: Unlike the prior generation of ISPs, which relied on others’ infrastructure, the cable industry started providing access to the Internet on networks that it owned. Even though they were acting as combined information and telecommunications providers, cable companies demanded that this new broadband service be classified as an information service, allowing them to avoid oversight as operators of basic network infrastructure.

After heavy cable industry lobbying, the FCC capitulated to this demand in two decisions in 2002 and 2005, leaving Internet openness in limbo. Leveraging this favorable regulation and monopolized ownership of network infrastructure into dominance over the market for broadband service, major cable and phone companies such as Comcast, Verizon and AT&T made themselves into the kind of powerful gatekeepers that the Internet had previously not had.

Concerns about their power sparked a debate over how to enshrine in policy the principle of net neutrality, resulting in the FCC passing net neutrality policies in 2005 and 2010. Both policies were struck down in court, though, because the rules were inconsistent with the section of the Communications Act (Title I, which pertains to information services) in which they were rooted. The U.S. Court of Appeals for the D.C. Circuit found that net neutrality is so closely aligned with the nondiscrimination requirements mandated by a separate section of the act, Title II, that it could not be enforced outside that framework. Great public pressure led the FCC to institute stronger rules in 2015, based this time in Title II, which withstood a court challenge last year.

Pai’s plan threatens to undermine equal access by changing the regulatory framework and, in doing so, reverses communications policy that has been central to our democracy since the founding. Calling his plan “Restoring Internet Freedom” shows how much Pai equates corporations’ freedom from regulation with freedom itself. However, real “Internet freedom” comes not from a negative freedom from government intervention, but an affirmative freedom that ensures protections for public values over private interests — the kind of democratic assurances that come from common carriage and its modern update, net neutrality.

Pai says that he wants to “save the open Internet” but that he believes a “free market” approach, one with the FCC kept out of the way, is the best way to get there. The history behind net neutrality, however, shows just how much the open Internet has depended on regulatory protection and how much old principles such as common carriage have new life now. Without net neutrality protections, giant corporations would be “free” to create a tiered Internet, with fast lanes and preferential treatment for the biggest and most powerful (or to charge for access to them) — and independent creators, activists and everyday citizens would be “free” to have their voices marginalized online.

The repeal vote on Dec. 14 is fast approaching. The Republican majority at the FCC has ignored the public outcry against its actions, so the last chance to save net neutrality rules now may be to call on Congress to intervene at the commission for us.